Monday, 10 January 2011

Transsexuals and the ADA

From Part 1 of an article exploring the explicit and specific targeting of trans people in the US legal system.

Parts 1-4 are in a separate PDF file Categorical Exclusions: Exploring Legal Responses To Health Care Discrimination Against Transsexuals K.Hong Columbia Journal of Gender & Law (2002) vol. 11: 88-126.
To date, the federal government has initiated two sweeping measures to protect patients who are denied health care for improper reasons. In 1965 Congress enacted the Medicaid Act to provide minimal medical care to lower-income individuals. One of its most important components prevents state legislatures from refusing treatment or reducing payment for a targeted or singled-out medically necessary condition. When a Medicaid recipient believes she is being unfairly denied medical treatment, she can turn to the federal courts to ensure that a state legislature's coverage of health conditions is based on proper medical and fiscal criteria.

The government's second major intervention occurred in 1990 when Congress passed the Americans with Disabilities Act (ADA). The ADA protects privately insured individuals by prohibiting private employers, insurers, and health care providers from targeting a particular medical condition for discriminatory treatment. The ADA does not directly influence the content of health insurance policies, however, which is why consumer advocates are calling for a Patients' Bill of Rights that, among other things, would mandate private insurers provide minimum standards of coverage in health care plans. Currently there is an Equal Employment Opportunity Commission order interpreting the ADA that indirectly regulates insurance policies, prohibiting a private employer from withholding employee coverage in a discriminatory manner. An employer's obligations in turn place economic pressure on insurance companies to standardize policy offerings. Further, the ADA provides individuals with a cause of action to ensure their employer's insurance company complies with the ADA's anti-discrimination provisions. Since the vast majority of Americans receive their health care from private employers, the ADA's dual-regulatory scheme and court-enforced remedies have been effective in providing many people with non-discriminatory access to health care.

Against this backdrop, I examine the discrete issues of whether transsexual individuals are improperly denied health care and whether legal remedies are available to them.
The problem being that a specific exclusionary clause was inserted in the ADA, out of pure animus.
In September 1989 as the ADA was nearing its final vote, Senators Armstrong and Helms took the floor and objected to the ADA's coverage of certain psychological conditions. Due to the Senators' efforts, the ADA was explicitly amended to exclude from coverage "homosexuality, bisexuality and transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual disorders; compulsive gambling, kleptomania, or pyromania; or current psychoactive substance use disorders resulting from current illegal use of drugs." Under this bill, the Rehabilitation Act was also amended to exclude coverage of these conditions. Transsexuals need coverage under the ADA to protect themselves against private insurers and medical providers who harbor hostility toward them. As much as Congress has the right to withhold benefits or favor some groups over others, I argue in Part III that the categorical exclusion of transsexuals from the ADA is a constitutionally impermissible congressional action.
Since the removal of Homosexuality etc from psychiatric diagnostic manuals, Transsexuality is the one and only excluded category that does not involve increased risk of breaking the law. The inclusion of "transsexualism" (otherwise undefined in the bill) as a separate category from "gender identity disorders not resulting from physical impairments" means that even Intersexed people who transition, as well as those who transition who are not Intersexed, are arguably both excluded.

As Donna Rose wrote on December 20 2007 :
The recent news story about a Southern Utah University student denied student housing until he can "prove" his sex is the tip of a much deeper problem. The sad fact of the matter is that we've been focused on Employment discrimination (and ENDA) but transgender people face legal, institutionalized discrimination in housing, public accommodations and other areas all across this country. It needs to become a priority for someone to fix these things, but since it's not on the radar (can you spell agenda?) we flail our arms and bark at the moon for a couple of weeks when they happen, but nothing gets done to address the source of the problem.

I want to share just how deeply engrained into the fundamental laws of this country the prejudices of the past regarding transgender people are, why language is critical, and why it's important to change them.

There is a section in the Americans with Disabilities Act of 1990 that specifically deals with "Transvestites". Section 508 reads:

For the purposes of this Act, the term "disabled" or "disability" shall not apply to an individual solely because that individual is a transvestite.
A little farther down there is a section that outlines the definitions used in the Act:

(a) Homosexuality and Bisexuality.--For purposes of the definition of "disability" in section 3(2), homosexuality and bisexuality are not impairments and as such are not disabilities under this Act.

(b) Certain Conditions.--Under this Act, the term "disability" shall not include--

(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;

(2) compulsive gambling, kleptomania, or pyromania; or

(3) psychoactive substance use disorders resulting from current illegal use of drugs.
Why is this important? Why should anyone care?

First, a probably least important, is that it perpetuates the outdated and pejorative term "Transvestite".

Second, does it strike anyone as curious that Homosexuality and Bisexuality are identified all by themselves in definition (A), but "transvestism" and "transsexualism" are listed right along with pedophilia, exhibitionism, voyeurism, and "other sexual behavior disorders" in (b)(1)? Somebody made a conscious decision to do this at a time when we didn't have the visibility to stop it, and it continues the stigma that somehow all these things are related. I'm not advocating that transgender be considered a disability. What I'm saying is that by including transgender with others identified as "sexual behavior disorders" it enables people to discriminate in other ways. It sends a message beyond this particular piece of legislation.

Third, beyond the symbolic value of this, why should anyone care? Because in the Fair Housing Act, and in other applications ranging from employment law, to university housing, to any number of local ordinances, this wording is extracted and used verbatim.
The term for this is institutionalized discrimination. The deeper you look, the more you'll find. It's scary and it gets thrown back in our face time after time.

Lastly, I think a key learning is that once you've passed legislation it's much, much, much harder to go back and change it. People move on to other things. It's not important. If ENDA gets passed without protection on the ground of Gender Identity does anyone really believe the cavalry will be coming over the hill to fix it? It will stay broken - institutionalized discrimination - for a long time. That's why people should be so angry about current strategy. The scariest (and most maddening) thing is that our "leaders" will have allowed it to happen.

I approached HRC lobbyists almost 2 years ago to try to get some kind of engagement internally so we could actively work to change the wording. The political landscape was such that opportunities to move the ball forward were few and far between, but highlighting this as a target so we could move when the opportunity presented itself was important. At the very least, we need to move the transgender definitions to their own bullet-point similar to (a) homosexuality and bisexuality. I arranged 2 separate phone conversations on this topic with our lobbyists and political strategists, and we agreed that our best opportunity to change this would be when something was happening to amend the ADA. We agreed to keep our eyes open for potential opportunities.

Fast forward to today. Does it surprise anyone to learn that there is, indeed, a bill to amend the ADA of 1990 currently in play in the Senate? Right now. S. 1881 would amend the Americans with Disabilities Act of 1990 to restore the intent and protections of that Act. How? By updating some of the definitions. When was it last discussed? A month ago. On 11/15/2007 hearings were held. Is there anything in it dealing with the definitions for "transvestism" and "transsexualism"? Of course not. Is anyone from any GLBT organization even aware? I seriously doubt it. Opportunity lost.
Time for this issue to be revisited. In the legislature, but also in the Courts.

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